The Gazette 1988

GAZETTE

JULY/AUGUST 1988

Get t ing into Amer i ca — Legal ly

Ronan Molumby

In view of the increase in recent years of Irish lawyers moving to the United States it wou ld be most useful to t hem to be aware of how they deal w i t h their immi gra t i on status both before they leave Ireland and after they arrive into the U.S. j ur i sd i c t i on. The most suitable and common ly used visa category to secure wo rk status for lawyers comi ng f r om Ireland and Europe to the U.S. is the H—1 category. This article is focussed on the situation of a lawyer either: (i)

(ii) the person must possess q u a l i f i c a t i o ns at least ma t c h i ng t h at m i n i mum requirement. To come to the U.S. as an Irish or international lawyer and to qualify for H—1 status, the employee must have successfully completed at the minimum a three or four year university degree in legal or legal r e l a t ed s ub j e c t s, or in t he alternative, must be admitted to the Bar or be entered on the Roll as a Solicitor. In d e t e rm i n i ng wh e t h er a position requires a professional level employee the United States Immigration and Naturalization Ser- vice will scrutinize the job duties to be performed by the employee. The employer's stated requirement of a bachelors or higher level degree must be accurate and a prerequisite for the proper performance of the job offered. Again attention is brought to the point that the position to be filled can be a permanent one but the employer's intention must initially be to fill that position only temporarily, even though the initial intentions of both employer and employee can later change. Procedure The procedure in brief involves the hiring U.S. firm (the "Pe t i t i one r ") formally petitioning the Immi- gration and Naturalization Service t o c l a s s i fy t he emp l o y ee ( " bene f i c i a r y ") for H —1 wo rk authorization. To discharge the burden of "distinguished merit and ability" the following documents should be submitted along wi th this Petition to Classify: (i) Or i g i nal t r a n s c r i p ts in duplicate from the relevant University or College giving

by Ronan Mo l umby, Solicitor Sioris & Mo l umby, New York relationship w i th the non-U.S. national must be temporary. Duration of Stay The employee/H—1 beneficiary may be admitted to the U.S. for the period of time required by the employer up to a maximum of t wo years initially. Occasionally this initial period granted is for three years but in either case further extensions of up to a maximum of five years in total are possible. During this intervening period, if the H—1 beneficiary so wishes, he or she can adjust to a permanent resident status ("green ca r d ") if t he emp l oyer agrees on sponsorship. Eligibility/Basic Requirements The emp l o y ee mu st be a " p r o f e s s i o n a l" or o t h e r w i se possess "distinguished merit and ability" in his or her field. For a person to be considered a profes- sional t wo requirements must be met: (i) the person's field must be one for wh i ch a baccalaureate or higher level degree (or its equ i v a l en t) is t he usual minimum entry requirement, and

securing a firm job offer from some U.S. firm (legal or other- wise) while he or she is still present in Ireland and having the H—1 visa issue from the U.S. Consul in Dublin; or (ii) arriving to the U.S. as a visitor (B —1 or B — 2 status) and then securing a job offer while in the U.S. and adjusting status to eligible worker while remaining in the U.S. juris- diction. This writing does not apply to the law student who is coming to the U.S. for summer placement to wh om a different visa structure applies, or to the intra company transferee whe re the Irish or European and U.S. corporations are satisfactorily affiliated. In general The H—1 non - immi g r ant visa category is used by companies and other organizations to temporarily employ non-U.S. nationals who qualify as persons of "distin- guished merit and ab i l i t y" in positions that require such ability. There are t wo classes of persons considered to be of "distinguished merit and ability": (i) Professionals, and (ii) Persons who are pre-eminent in their fields. It is important to note that the position can be permanent in nature, but t he emp l o yme nt

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